Prosecutions, Methods of Obtaining Overseas Evidence, Human Rights Protection in Europe
© Springer International Publishing Switzerland 2015Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_9
Transnational Prosecutions, Methods of Obtaining Overseas Evidence, Human Rights Protection in Europe
Department of Law, University of Messina, Piazza Pugliatti No. 1, Messina, Italy
2 Transborder Investigations and Interferences with Fundamental Rights: Problems and Human Rights Challenges
3 Solution Models for Setting Fair Procedures of Obtaining Transnational Evidence After the Lisbon Treaty
3.1 From the European Commission’s Proposals to the Directive on a European Investigation Order: On the Path Towards a New Form of Mutual Recognition?
4.2 Qualitative Requirements for a Fair Application of Criminal Law to Transborder Cases: The Substantial Link Between the Perpetrator and the Criminal Law System
This study analyses the collection of evidence in transnational inquiries in Europe and its consequences on the sphere of fundamental rights of the individuals involved. It stresses that this issue cannot be properly analysed without a broader viewpoint that requires ascertaining which countries are called upon to international cooperation and what substantial link the addressees of the transnational prosecution have with the law of these countries. This approach leads to extending the focus to how prosecutorial power should be distributed among several countries claiming the activation of their jurisdiction for the same case and, in a deeper sense, to which qualitative requirements a modern criminal law must have to grant offenders a fair adjudication while facing the challenges of an increasingly multicultural Europe. This study proposes the adoption of a common methodology in the analysis of both problems of the choice of the forum and the decision of the modes of investigation—a methodology that, starting with a strongly human-rights-oriented perspective, pursues the achievement of a delicate balance between individual rights protection and the need for efficient transnational prosecution.
KeywordsChoice of the forumCriminal evidenceHuman rightsTransnational inquiries
1 Introductory Remarks
In the last two decades, the significant rise of new types of crimes committed across borders has strengthened the need to enhance transnational prosecution, and we have witnessed significant developments in the field of international cooperation in criminal matters.
To begin with, new modes of cooperation have emerged from the traditional MLA worldwide. In Europe, the CISA posed the basis for a cultural change of extraterritorial investigations, which led to the introduction, by means of the 2000 EUCMACM, of “a new generation of extra-territorial investigations”, fully unrelated to the requirement of urgency.1 From this emerged an unprecedented mode of transnational collection of evidence by the joint investigation teams.2 A further development of this new model, which has allowed for direct cooperation especially among police forces, has been the beginning of the practice of conducting joint investigations, a practice significantly continued even by countries lacking the legislative basis for setting up investigative teams.3 Outside Europe, it is noteworthy that US case law engages in analysing whether investigations have been carried out abroad in a “joint venture” with US officials and therefore whether US officials have played a substantial role in the overseas inquiries, which requires the application of US (constitutional) rules to the extent possible.4
But at the EU level, another important change occurred at the end of the 1990s in the way of dealing with judicial cooperation. A close examination of the evolution of EU cooperation in criminal matters shows that the improved MLA system has rapidly developed into the order model by means of the general enshrinement by EU legislation of the principle of mutual recognition as the cornerstone of almost the entire area of judicial cooperation, regardless of the very different nature of the judicial products concerned. The outcome was the mainstream replacement of the traditional request model through a new order model. A close look at its development over the last decade shows, however, a sort of parabolic trend, which has led to such a progressive evolution of the mutual recognition principle over recent years that some of the main features of the MLA system have been re-introduced and mixed with the pure forms of the order model.
Alongside these developments, new investigative tools and ways of speeding up the exchange of data, information and evidence among prosecuting authorities in force of the “principle of availability” have emerged, due to rapid technological and scientific advances.5 This has certainly contributed to the enhancement of international cooperation, entailing a significant growth in the use of investigative measures impinging in unprecedented fashions on the sphere of the rights of the individuals involved in transnational procedures (suspects, victims, witnesses, etc.). Upon close examination, technological developments have contributed to this phenomenon at least in two ways, i.e., by providing new forms of intrusive investigation (e.g., online search) and by allowing for “direct, reciprocal access to national databases using the full range of new technologies”,6 making national systems of telecommunications services accessible to foreign authorities by means of service providers and others. There is little doubt that such means can touch upon individual rights and in such a hidden way that the notion of “coercion” in its traditional sense has in a great part become perhaps more inappropriate in the field of transnational inquiries than in domestic procedures.
Despite these developments, however, legislative regulations of interferences with fundamental rights in the field of transborder procedures have surprisingly remained scant and uncoordinated. And whereas in cases, such as those on the setting up of joint investigation teams, procedural rules do not distinguish among the types of investigative activities that the team may carry out, the general provisions on the exchange of evidence and information laid down in several international instruments allow for national authorities to obtain the results of intrusive inquiries conducted out overseas through bypassing the limits inherent in the procedures on rogatory letters.7 In the area of mutual recognition, moreover, it is noteworthy that—despite the explicit reference in the FD EEW to the discretion of the executing authority in choosing whether to use coercive means in the collection of evidence—in recent years we have witnessed a clear legislative tendency to allow for greater application of coercive means in transnational inquiries. However, this tendency, which is proportional to the aim of widening of the order model to any kind of investigative and evidential activity by means of the EIO proposal, still lacks a coherent project of regulation of intrusive investigations.
Viewed from a human rights perspective, the failure to regulate interferences with individual rights in transnational inquiries in a coherent and comprehensive manner is in line with the lack of coordinated protection of fundamental (especially defence) rights in transborder investigations by international texts. Upon close examination, in the field of evidence gathering, EU legislation launched pursuant to the order model reveals even more deficiencies than what was achieved in the field of the request model. Thus, no participation of the defence is foreseen in the investigations conducted in other member states, whereas the combination of lex loci with specific formalities of lex fori, as we will see, is primarily aimed at fulfilling the need to ensure the movement of evidence and its admissibility in the relevant proceedings rather than the need to find a proper balance of state-related interests, the defendant’s rights and the rights of the addressee of the overseas investigation.
To be sure, an unbalanced tension between the need for efficiency of transnational prosecution and the protection of individual rights emerges from the Lisbon Treaty. Certainly, article 82(2)(b) TFEU, by legitimising legislative intervention of the EU institutions with the purpose of protecting the rights of individuals in criminal procedures, relates also to the rights of the individuals involved in transnational criminal procedures. Furthermore, the defendant’s rights in the field of transborder investigations appear to be only indirectly protected through legislative intervention in the field of admissibility of transnational evidence [art. 82(2)(a) TFEU]. Moreover, whereas the TFEU has, in different fashions, strengthened police and judicial cooperation in criminal matters (e.g., by providing a legislative basis for the future EPPO at a primary law level, by enhancing the role and tasks of Eurojust, etc.), article 82(2)(b) does not allow for the harmonisation of individual rights exceeding the establishment of minimum standards. Whatever the meaning of this provision is, therefore, the introduction of minimum rules to the extent strictly necessary to facilitate mutual recognition calls for a minimalist approach.
Against this background, this paper aims at questioning the properness of this approach, which is not in line with the “unique vulnerability of defendants” and, in general terms, of the individuals “facing international investigations”, a condition that requires standards of protection “surely exceed[ing] those currently available in domestic proceedings”.8 In light of this, the analysis will focus, by means of comparative method, on what human rights protection transnational procedures must ensure where intrusive investigations are required to obtain overseas evidence in transnational criminal inquiries. In this regard, this paper argues that the modes of conducting investigations and taking evidence abroad cannot be chosen independently from the determination of the competent forum and that a common methodological approach should unify—from a human rights perspective—the choice of the power to prosecute and the way of investigating transnational crimes.
2 Transborder Investigations and Interferences with Fundamental Rights: Problems and Human Rights Challenges
2.1 The National Level
Starting with these premises, I shall first analyse which methods guide the collection of transnational evidence in national countries and what human rights protection they provide where interferences with fundamental rights are required. To this end, I have selected four European countries, i.e., Germany, Italy, Spain and Switzerland, that will be analysed first separately and then comparatively.
2.1.1 Analysis of National Countries
Analysis of the selected legal systems has been conducted at two levels, which relate to the legislation and the developments of domestic jurisprudences. The need to analyse both levels is particularly evident in the field of transnational inquiries, where case law gains even more relevant roles than in domestic procedures by defining the formalities that must be applied for investigative and evidential activities and by laying down the limits within which overseas evidence may be used. Moreover, as we will see, national jurisprudence often follows common courses despite the different orientation of its respective legal systems.
In Germany, despite the existence of a comprehensive national Law on legal assistance in criminal matters (IRG), the main rules on the collection of overseas evidence can be traced back to international legislation, which, as a general rule, take precedence before the provisions of the IRG “to the extent that they have become directly applicable national law” [art. 1(3) IRG-Germany]. Within Europe, German police and judicial cooperation in criminal matters is mainly based on the ECMLACM, the CISA and the EUCMACM. Thus, pursuant to the most advanced forms of MLA, as we will see, assistance is provided following combination methods of obtaining evidence, whereas extraterritorial investigation powers can be exercised abroad by German officials, as a rule, with respect to the formalities of lex loci. A different solution applies to incoming requests for assistance not based on international regulations. Here, as a general rule, assistance must be provided in a manner compatible with relevant principles of national law (§ 73 IRG-Germany), which, in light of efficient international cooperation, mainly relates to constitutional law9—a general requirement of fundamental importance where intrusive means are at stake.
This limit does not, instead, apply to outcoming requests for assistance, which must follow all the requirements of German criminal law,10 although it is noteworthy that German case law adopts a rather flexible approach as to the use at trial of the results of overseas inquiries. Also here, the failure to meet the procedural principles of the requesting country, especially where the general standards of the rule of law are at stake, can lead to the inadmissibility of overseas evidence.11 But apart from these cases, German case law faces the problem of the use of overseas evidence in a very pragmatic way12: in principle, foreign evidence is deemed admissible even where it has been taken following procedures other than those laid down by German procedural law, but then, “as a compensation, the judge shall consider this fact when assessing the evidence and, where necessary, give lesser credit to such ‘tainted’ evidence”.13
Among other European countries, Italy shows considerable backwardness in the field of international cooperation in criminal matters.14 Because of the failure to ratify the EUCMACM and to implement most EU instruments, the main international instruments that govern Italian legal assistance with other European countries are still the ECMLACM and the CISA. Moreover, since SAP ECMLACM has not been ratified, cooperation based on the ECMLACM cannot profit the most advanced forms of legal assistance. But a certain backwardness of the Italian legal system in the field of international criminal cooperation also relates to the national rules on judicial assistance in criminal matters, enacted into the 1988 CCP. Despite the title of Book XI (Jurisdictional relationships with foreign authorities), not only has the CCP failed to fully jurisdictionalise the forms of legal assistance, but furthermore it has not enacted any provision specifically related to the use of coercive means in the context of transnational inquiries. This lacuna probably derives from the lack of a comprehensive doctrine of interferences with fundamental rights also in the field of domestic procedures, where the rules on “coercive measures” relate to remand detention and other forms of restriction of personal freedom.
Against this background, cooperation with other European countries remains, in the absence of specific bilateral agreements, based upon old international instruments that, concerning the forms of obtaining evidence, follow, as a rule, application of the lex loci alone. Also here, furthermore, case law has elaborated a compensating mechanism to limit the use at trial of overseas evidence, thus requiring the compatibility of the evidence gathered pursuant to foreign procedures “with fundamental principles of the domestic legal system”.15 This solution, however, entails the serious risk that the standards of protection of individual rights might be lowered beyond that allowed in relation to domestic procedures.16 On the other hand, where the CCP regulation is applied, article 725(2) CCP-Italy, following the approach of most instruments of the improved MLA system, requires assistance to be provided pursuant to Italian law, but national authorities will be bound to implement foreign requests for the application of special procedures unless they infringe the fundamental principles of national law. Act 367/2001 enacted a similar solution in the field of active rogatory letters [art. 727(5-bis) CCP-Italy], but the possibility of requesting the application of Italian procedures in the collection of evidence abroad applies only where an international agreement provides for it and can lead to the inadmissibility of any evidence gathered without respecting the requested formalities [art. 729(1-bis) CCP-Italy]. To avoid this risk, Italian authorities often request the transmission of evidence already taken abroad. As a result of the frequent use of the model of (spontaneous) exchange of evidence, often gathered on the basis of informal requests by Italian authorities, not only are the limits inherent in the system of letters rogatory eluded, but the defendant is deprived of any possibility of taking part in overseas investigations.17
Unlike other European countries, Spain neither has an autonomous Law on judicial assistance in criminal matters nor regulates its international cooperation within the CCP, and only a few generic rules on international cooperation (not only in criminal matters) are contained in the 1985 LOPJ.18 Judicial assistance is therefore mainly based upon international agreements, and, within Europe, the main instruments remain the ECMLACM, the CISA and the EUCMACM. Interestingly, despite the availability of most tools of improved legal assistance, in Spanish case law the Tribunal Supremo is often satisfied with the fact that investigations are carried out in compliance with lex loci to admit the use at trial of foreign evidence even where the procedures followed abroad considerably differ from Spanish rules and the investigative activities have interfered with fundamental rights abroad.19
Switzerland has a highly developed system of international cooperation, and the Swiss legal system attaches great importance to the collection of evidence by means of intrusive investigations. At an international level, where no more specific agreement applies, the ECMLACM traditionally governs Swiss international cooperation with European countries. Moreover, the association to the Schengen acquis, which entered into force in Switzerland in December 2008, within the framework of the 2004 Bilateral Agreements II between Switzerland and the European Union, has brought several changes and simplified several fields of judicial assistance, such as the transfer of evidence.20 Administrative assistance is regulated separately in the different areas of law, such as prevention of money laundering, terrorism financing, etc.21
Within its scope of application, the Swiss IRG attaches great attention to the respect of fundamental rights in transborder inquiries. Thus, as a general rule, providing legal assistance must not infringe the procedural guarantees of both the ECHR and the ICCPR [art. 1(a) IRG-Switzerland], international instruments that “constitute the core of the constitutional fundamental rights” and therefore in Switzerland “prevail over any other international agreement or national law”.22
Both inside and outside the Schengen area, several investigative activities can interfere with fundamental rights, such as seizure of assets, exchange of evidence and information, etc. Some of them are regulated by the IRG, which, moreover, contains a general provision concerned with compulsory means that imposes, as a general rule, the respect for the requirement of dual criminality (art. 64 IRG-Switzerland). Further rules of great importance in light of fundamental rights in the field of transborder inquiries concern the methods of obtaining evidence and defence rights. Concerning the first issue, Switzerland has enacted a very strict rule, which requires perfect compliance of the forms explicitly requested by foreign authorities to obtain evidence with domestic procedural rules (rather than with the relevant principles of domestic law) [art. 65(2) IRG-Switzerland]. In cases of coercive means, this requires, therefore, compatibility with the general rules laid down in CCP-Switzerland (arts. 196 et seq.), and it is noteworthy that, to avoid discriminations with domestic cases, article 65(c) IRG-Switzerland provides that “no essential disadvantage may result [from the procedures requested] to the persons involved”.23 Concerning the defence rights, Federal Act of 4 October 1996 introduced into the IRG a new article 65a, which allows for parties in foreign proceedings to take part in the acts of judicial assistance and to have access to the files, whenever requested by foreign authorities or to facilitate foreign inquiries.
2.1.2 Comparative Conclusions
From these elements we may draw the following conclusions:
National countries have generally failed to enact general rules governing the use of investigative powers relevant to fundamental rights in cross-border cases. Whereas Italy does not directly address the issue of letters rogatory entailing restrictions of individual rights, Germany’s and Switzerland’s Acts of international cooperation in criminal matters regulate a certain number of investigative powers affecting fundamental rights. The IRG-Switzerland even lays down a general provision on the use of coercive means, which, however, limits itself to requiring the dual punishability of the act that gives rise to legal assistance.
National regulations show the general preference for the application of combined methods of taking evidence aimed at foreign investigations, methods that, in light of the need for efficient international cooperation, are generally based on the clause of compliance of the foreign procedures with the fundamental or relevant principles of domestic law. Significantly in Italy, whereas the possibility of requesting the respect for domestic formalities in foreign investigations applies only where an international instrument in force in Italy allows it [art. 727(5-bis) CCP-Italy],24 Italian authorities are generally committed to applying foreign procedures whenever requested abroad pursuant to article 725(2) CCP-Italy. The IRG-Germany follows, within its scope of application, a similar approach. These solutions entail, however, considerable risks from a human rights perspective. Especially, the lack of clear rules as to which measures can be requested leaves great uncertainty both to the defendant in the relevant proceedings and the addressee of the measure concerning the procedure that will be followed in regard to the specific investigative activity. Moreover, this rather imperfect combination between procedural rules can lead to due process guarantees being reduced in comparison with domestic cases. Such risks are considerably reduced in Switzerland, which, by requiring perfect compatibility of the foreign procedures with Swiss law, does not, however, provide certainty as to the procedural law that will apply to the investigation in question.
Combined methods are generally used at a domestic level to admit overseas evidence in domestic proceedings, and also here the goal of fulfilling the need for efficient international cooperation has led to the widespread preference for the limit of compliance with the relevant principles of national law. Among the analysed countries, Spain remains unique by generally adopting a rather pragmatic and humble attitude to overseas evidence, which is often admitted even if gathered with the sole respect of lex loci and without the “due process safeguards that would be required if the same investigation took place in Spain”.25 Instead, Italy contains—even if only within the scope of the application of article 727(5-bis) CCP-Italy, i.e., where an international agreement allows it—a very strict regulation aimed at excluding the use of any piece of evidence taken abroad pursuant to procedures different from those indicated in the request [art. 729(1-bis) CCP-Italy]. But despite the wording of this provision, it should be interpreted reasonably, and therefore use should be permitted whenever the failure to fulfil the formalities laid down in the request would not jeopardise the ability of the procedural activity to realise its effects in Italy.26
The model based on the compliance of the formalities followed overseas only with the fundamental principles of the law of the country where the process takes place has given rise to various criticisms in criminal law scholarship.27 From a formal viewpoint, this approach certainly produces a significant “de-formalisation of evidential procedures”.28 But the main concern is perhaps that such combined methods of obtaining evidence, as has been noted, aim at responding more to the need for efficient international cooperation than to the human rights challenges that are inherent in transborder inquiries. This of course heightens the risk of discrimination, since with a view to facilitating the use at trial of overseas evidence the defence rights of the accused might be considerably weakened compared to those that would be granted in domestic procedures.29
2.2 The International and Supranational Levels
2.2.1 Developments in the Request Model
The traditional MLA system did not provide comprehensive rules on the use of investigative means touching upon fundamental rights, nor did it establish specific methods for the collection of overseas evidence. In its original text, the ECMACM contained no general clause specifically aimed at regulating the adoption even of measures implying the use of coercion in the context of procedures of legal assistance. Nor were there specific rules concerning the methods of taking evidence abroad in cases of intrusive investigations. Concerning the modes of gathering evidence, the strong sovereignist approach posed lex loci as the general rule applying to any letters rogatory. As a consequence, the protection of the rights of the individuals involved in the proceedings in the home state depended entirely on the standards of the host state. This rendered the participation of the defence of private parties—provided for by several international texts, such as the ECMACM (art. 4)—a rather formal guarantee, since the defence could not help in any way in the proper application of foreign law.
To be sure, certain rules concerned with the use of some intrusive investigative means had already been laid down in the ECMACM with the purpose of enhancing the protection both of the national sovereignty and individual rights. But these rules still lacked a general framework of principles establishing the general conditions for exercising intrusive investigations and therefore limited themselves to laying down only basic requirements (even if not generally applied in the field of letters rogatory).30 On the other hand, the traditional MLA was clearly characterised by a classical understanding of intrusive investigations as referring to measures restricting fundamental rights (e.g., property) by means of coercion.
This system lasted up to the 1980s. But many things progressively changed in the MLA model by means of bilateral agreements. And at the beginning of the 1990s, significant developments were enacted into multilateral instruments. Within the Schengen area, the CISA introduced into the European MLA system the possibility of direct contacts between the domestic judicial authorities while sending and receiving requests for assistance [art. 53(1) CISA]. This provided the general framework for a methodological change of approach in the collection of evidence overseas, since the requesting State was allowed to require the fulfilment of specific formalities of its own law, which entailed the duty of the requested authority to apply partially (under certain conditions) foreign law. This change introduced an unprecedented combination of procedural laws to take place, an approach that gave new significance to old mechanisms but raised new legal problems for both the cooperating authorities. Thus, the possibility of the attendance of officials and private parties of the relevant proceedings at the execution of letters rogatory undoubtedly gained an important role by helping the requested authority to fulfil the difficult task of applying foreign law.31 To reduce the difficulties arising from the application of foreign law, furthermore, some of the international instruments that first adopted this approach required a test of full compliance of the requested procedures with the law and even with the practices of the requested country.32
This new approach marked another significant cultural change in the field of judicial assistance. Under the traditional MLA system, the strict application of lex loci allowed both parties to ignore foreign law, and it is no surprise that even those countries that continue to use the old MLA system waive their right to verify whether lex loci has been respected, thus acknowledging a presumption of compliance with lex loci.33 By contrast, the combination of procedural laws required an additional effort by both sides: the requesting authority had to learn the law and practice while choosing the formalities to be followed in the gathering of evidence overseas, whereas the requested authority had to familiarise itself with lex fori to apply it properly.
This cultural change brought about the introduction into international texts of general clauses concerned with the use of coercive measures in the field of transborder inquiries. And even if this did not lead to a substantial change in the way of conceiving coercive means as investigative measures implying the use of coercion, the enactment of general provisions entailed positive effects. Among the main examples, we might quote article 4(1)(e) of the UN MTMACM, which provided for the refusal of assistance if granting it would require the requested State to carry out compulsory measures that would be inconsistent with its law and practice, if the offence had been the subject of investigation or prosecution under its own jurisdiction. Consequently, only those coercive measures that would have been admissible in a similar domestic case in the host country could be executed. This assured the individuals subject to restrictions through coercive means the same standards of protection as laid down by lex loci, though this guarantee did not rule out that—in light of the principle of the most favourable treatment—a higher level of protection might be afforded through the formalities of lex fori required by the requesting authority.34
A further development occurred in the MLA system at the end of the 1990s, concerned with the methods of obtaining evidence abroad, brought about several changes. Thus, the combination of procedural laws was maintained but—in light of the increasing need for more efficient international cooperation—submitted to a test of consistency of the requested formalities of lex fori not with the entire law of the requested country but only with its fundamental principles.35 Surprisingly, moreover, neither the EUCMACM nor the SAP ECMLACM enacted a general clause allowing for a test of consistency of the requested compulsory investigations with lex loci, nor is there any general rule on the use of intrusive measures, notwithstanding such rules would have certainly been necessary due to the introduction of international standards on the use of investigative means interfering with fundamental rights in a hidden way, such as undercover inquiries, wiretaps, etc.
2.2.2 Developments in the Order Model
In the field of transborder investigations and obtaining evidence abroad, the application of the principle of mutual recognition showed, since its very beginning, a clear tendency of EU institutions to facilitate international cooperation regardless of whether this might lower the standards of individual rights protection—a tendency perhaps even more accentuated than what happened to the right to freedom by means of the EAW.
In its early years, the order model, despite dealing with securing rather than with taking evidence, drastically reduced the grounds for refusal of assistance. As a consequence, not only did some of the classic sovereignty-based clauses (e.g., the prejudice of essential national security interests) disappear, but some of the surviving grounds for refusal were construed in a way that weakened them and constituted a dangerous backward step in human rights protection.36 A clear example of this approach is the FD OFPE, which, concerning the modes of securing evidence, inherited the combination of lex loci and lex fori that characterised the last phase of the MLA system, including the requirement that requests should conform to the fundamental principles of the legal system of the executing country. Compared to this model, however, the degree of integration with foreign law was remarkably reduced, in that the possibility for the issuing authority to require the fulfilment of procedural formalities of its own law was allowed only to the extent necessary to ensure the validity of evidence in the relevant proceedings [art. 5(2)]. Moreover, unlike the MLA instruments, it failed to provide for any form of joint participation of officials and mostly private parties in the execution of the freezing procedure.
But the principle of mutual recognition itself has undergone significant developments over the last decade. A look at the FD EEW of 5 years later shows that the rigorous logic of the order model was remarkably smoothened by the re-introduction of some classic sovereignty-based clauses (e.g., the prejudice of essential national security interests) and, in general terms, by the re-expansion of the list of the grounds for refusal. Even more significantly, the FD EEW has introduced a general clause giving, as a rule,37 the executing authority full responsibility for choosing whether and which coercive means could be used in the execution of the evidence warrant [art. 11(2)]. This clause has been supported by a further provision, according to which the fulfilment of the formalities and procedures of lex fori in the execution of the evidence warrant cannot entail any obligation for the executing State to adopt coercive measures.38
3 Solution Models for Setting Fair Procedures of Obtaining Transnational Evidence After the Lisbon Treaty
The entry into force of the Lisbon Treaty constituted the starting point for new debates and the launching of new proposals in the field of transnational evidence. The main aim of these proposals has been the creation of a comprehensive system of conduction of overseas investigations and taking evidence in other member states. But another significant cultural change has inevitably accompanied these initiatives, as their wide scope has shifted the focus to how investigations may be carried out overseas where they impinge on the sphere of individual rights.
With a view to setting up a fair model of gathering transnational evidence pursuant to the new challenges posed by Lisbon, furthermore, I shall analyse three solution models, which respectively emerge from (a) a further development of the order model by means of legislative proposals launched after the Lisbon Treaty and two modes of conducting transnational investigations in a strict sense, respectively by means of (b) joint investigations and (c) a Europe-wide conception of territoriality. The critical analysis of these models will allow us to observe three fundamental requirements for the construction of a fair model of transnational criminal inquiries, i.e., legal multiculturalism, cooperation and coherence in the investigations.
3.1 From the European Commission’s Proposals to the Directive on a European Investigation Order: On the Path Towards a New Form of Mutual Recognition?
After the Lisbon Treaty, EU institutions immediately announced important innovations in the field of transnational investigations and taking evidence abroad. Shortly before the entry into force of the Lisbon Treaty, the European Commission had already launched an ambitious challenge for overcoming the limits of the FD EEW. In its Communication “An area of freedom, security, and justice serving the citizens”,39 it proposed the setting up of a comprehensive means of collecting evidence and envisaged the establishment of minimum principles to facilitate the mutual admissibility of evidence between countries, including scientific evidence. This approach was confirmed by the Green Paper of 11 November 2009, in which the Commission launched an ambitious proposal, aimed at covering a much more complex area than that covered by the legal instruments existing at that time, i.e., both the obtaining of evidence in criminal matters by one Member State from another and the securing of its admissibility in the criminal process that makes use of the evidence. The Commission drafted a distinction between two types of dynamic evidence, i.e., (a) evidence that, although directly available, can be obtained only through procedural activities (interviews of witnesses or suspects, wiretapping, bank accounts, etc.) and (b) evidence that, though it exists, requires further investigation or examination (analysis of existing objects, documents or data or obtaining of bodily material, such as samples or fingerprints). Although this distinction clearly relates to intrusive investigative means, however, the Commission’s approach in dealing with these measures remained unclear and the focus seemed to be addressed to investigative non-coercive means only to exclude the application of some grounds for refusal of assistance.
After the entry into force of the Lisbon Treaty, the Stockholm Programme of 11 December 2009 re-affirmed the need to bring order to the fragmentary regime of the existing instruments.40 And along these lines, the Commission proposed, in its Action Plan Implementing the Stockholm Programme, two legislative initiatives planned for 2011. These initiatives have, however, never been launched, since they were anticipated by eight member states, which in April 2010 presented the ambitious legislative proposal of setting up a comprehensive tool of overseas investigations aimed at gathering almost any type of evidence, including non-documentary and dynamic evidence, i.e., the proposal for a Directive on a new European investigation order (EIO).41 The genesis of this text has been slow and turbulent, however. Starting in April 2010, examination by the Council lasted more than 1 year; a general agreement on the proposal was not reached until December 2011.42 After the orientation vote of May 2012 by the European Parliament, furthermore, the Conference of Presidents decided in June 2012 that the European Parliament would suspend its cooperation with the Council, inter alia, on the EIO dossier until a satisfactory outcome was achieved on Schengen governance.43 Cooperation re-commenced in 2012, but the negotiations among the Council, the Parliament and the European Commission lasted up to November 2013, thus ending up in a compromise text.44 After its confirmation by the Permanent Representatives Committee on 3 December, the EP Committee on Civil Liberties, Justice and Home Affairs voted on the text on 5 December 2013 and on 7 March 2014, after almost 4 years of long examinations, the Directive was finally issued.45
A short look at this long path clearly shows that the text has been largely amended. To be sure, the original draft was not entirely consistent with its ambitious goal of launching a new form of mutual recognition resulting from the combination of the order model with the flexibility of the traditional MLA system—a goal that, moreover, encompassed the achievement of a high level of protection both of state-related interests and individual rights. Despite these aims, the original proposal had drastically reduced the grounds for refusal, which significantly restricted the margins of discretion of the executing authority while threatening both national sovereignty and the sphere of human rights.46 As has been observed, furthermore, the original proposal had already dropped the emergency brake, introduced by the FD EEW, concerned with the use of coercive means: the executing authority was not left free to decide whether to enforce compulsory measures and, even worse, the choice of which investigative means, including intrusive means, to apply was left, in line with the approach of the proposed instrument, to the issuing authority. Nor did the original draft reproduce the clause, introduced by the FD EEW, banning the issuing authority from compelling the executing authority, by requesting the fulfilment of procedures of its own law in the collection of evidence, to apply coercive methods.
To be sure, the intrusiveness of the investigation abroad clearly emerged from several provisions, and it is therefore no surprise that in the course of the Council examination not only were new grounds for refusal re-introduced (e.g., the principle of ne bis in idem), but furthermore article 10(1) was re-structured, and a two-tier list of grounds for refusal was set up just on the basis of the distinction between coercive and non-coercive measures.47 Although the final text has not reproduced this solution in the same terms, it has maintained a two-track system, based on a distinction between “normal” investigative measures and (among others) non-coercive measures, which “always have to be available under the law of the executing State” [art. 10(2)] and to which two of the normal grounds for refusal do not apply, i.e., the dual criminality requirement (unless the EIO has been issued in relation to one of the serious crimes listed in Annex D) and the respect for the limitations provided for by the law of the executing state and concerned with certain punishment thresholds or types of crimes [art. 11(2)].
This approach still displays a complicated construction, which gives rise to many human rights concerns. The fact that the measures of article 10(2) are provided for in an exhaustive list and that the grounds for refusal have been re-unified in a comprehensive list clearly demonstrates that the new investigative tool—unlike the old EEW—can normally impinge on fundamental rights. However, the very different regulation applicable to cross-border investigations and especially the heterogeneous nature of the measures listed in article 10(2) still do not make it possible to clearly understand what is to be meant respectively by “coercive measures” and “non-coercive means” in modern transnational procedures and which principles must govern their use.48 For instance, hearings of witnesses or experts, despite not being included among “non-coercive measures”, are subject to the same regulations: as a consequence, they can be conducted irrespective of whether the act constitutes a criminal offence also under the law of the executing state and therefore without the guarantees that this law provides for in cases of criminal investigations.49 On the contrary, investigative orders concerned with hearings by videoconference or other forms of audio-visual transmission may seem to be subject to the conditions set out for normal investigative means: thus, they may be refused in (all) the cases provided for in article 11, and witnesses and experts must be granted, among others, the right not to testify, which they would have under the law of either the executing or the issuing State.
This example shows in very clear terms how outdated the notion of “coercion” is, since both in domestic and transnational procedures it is no longer able to display the multiple forms of interference with the sphere of individual rights, forms not necessarily concerned with the intrusion in, or restriction of, fundamental rights. In this light, the new instrument still lacks a coherent, comprehensive vision of investigative interferences with fundamental rights. Upon close examination, the topic of fundamental rights protection still appears in a negative manner as a limit to efficient transnational prosecutions50 rather than as a balancing element and condition for the achievement of fair transnational prosecutions.
As has been noted, the insertion of non-coercive investigative measures into the provision allowing the recourse to another measure, i.e. as a limit to this power, leads to the result that these must always be available under the law of the executing state, even if they entail an interference with individual rights, albeit without the use of coercion in a strict sense. In this regard, a particularly worrying issue is the importance attached by the new legislative tool to the collection of evidence already available for the issuing authority. Since the Council general agreement of December 2011, this mode of gathering evidence has appeared among the main aims of the new instrument [art. 1(1)], which will therefore encompass the scope of application of the old EEW. It is noteworthy, moreover, that in the final text obtaining available information appears at the top of the list of the (non-intrusive) investigative activities that must always be available in the executing country. This approach means underestimating the repercussions of this way of collecting evidence on the individual rights sphere. The decision of the issuing authority to request the transfer of evidentiary information already obtained in the executing state excludes any form of control of the overseas investigation by the defence. The general acknowledgement of this mode of obtaining evidence, furthermore, entails the risk of leaving enormous leeway to the issuing authority in choosing whether to order foreign authorities to conduct overseas investigations by means of an EIO or to order them to transfer the information obtained there, often in response to an informal request to do so. However, the modes of obtaining evidence abroad clearly cannot depend upon the discretion of the competent authority, nor can they be chosen irrespective of the link of the involved countries with the alleged offence.
On a deeper level, furthermore, the choice to exclude, in relation to this mode of obtaining evidence, the assessment of dual criminality and the respect for the criminal law requirements established by the law of the executing state shows that the incorrect application of the logic of division of labour, typical of the mutual recognition era, can give rise to serious lacunas in the protection of fundamental rights. This is principally because here the order is concerned with the taking of evidence rather than with the conduction of an investigative measure, which consists in the simple movement of evidence from one state to another—evidence, moreover, collected prior to, and independently from, the EIO procedure and possibly in the context of proceedings with a different subject and often of a different nature. Although evidence was taken in the executing state by means of an investigative measure (e.g., interception of telecommunications) in compliance with the legal requirements provided for by its procedural law in the proceedings for offence A, the free transfer of this evidence to another state by means of the EIO procedure, initiated in the proceedings for offence B, which does not even constitute a criminal offence in the executing state, exposes defendants to the risk of a criminal liability that they would not have run if the prosecuting authority had required the same measure to be conducted abroad. The same applies where the act in respect of which the EIO has been issued, albeit constituting a criminal offence under both legal systems, allows the investigative measure under the law of the issuing state but not under that of the executing state. In both cases, the failure to give relevance to these fundamental requirements will allow for the national authority receiving investigative orders to ignore the repercussions that the simple transfer of evidence can entail upon the sphere of individual rights in the criminal proceedings carried out in another member state.
To this end, it can be doubted that respect for individual rights can be ensured by the general provision allowing for the executing authority to refuse the execution of the EIO that would be incompatible with the executing state’s obligations under article 6 TEU and the EU FRCh [art. 10(1)(g)]. The introduction of fundamental rights clauses seems to be a rather programmatic way of acknowledging their value, which does not entirely correspond to specific regulations, especially on the methods of obtaining transnational evidence.
Upon close examination, the general duty to refuse assistance in the event of a breach of a fundamental right (or defence rights) may seem to be subject to the discretion that inspires all the situations listed in article 11(1), some of which, moreover, entail clear risks for individual rights. As a consequence, the executing authority is entitled to carry out the sought investigation, thus eventually impinging upon the fundamental rights either of the defendant or of third parties, notwithstanding the accused has been finally judged in the issuing state or in another country of the EU area. Even the fact that the act in respect of which the EIO has been issued was committed outside the issuing state and wholly in the executing country does not ban the executing authority from carrying out a (coercive) measure against the defendant, who may be a citizen of, or permanently resident in, the executing country and have legitimately trusted the lack of criminal relevance of their action—a conclusion that endangers both the requirement of legal certainty and EU principle of non-discrimination.
Furthermore, although the final text has dropped the proposed recital 12aaa, according to which member states “should ensure cooperation without endeavouring themselves to assess the respect of Union law and fundamental rights by the other Member States”, the commitment required from the cooperating authorities in ensuring respect for individual rights in transborder inquiries still appears to be generic. Starting with “a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights”, a presumption rebuttable only where there are substantial grounds for believing that the execution of the EIO would entail the breach of a fundamental right as established in the EU FRCh,51 the Directive shows that EU institutions are still far from the idea of shared responsibility in ensuring full respect for individual rights in transnational investigations.52 This is probably because they are far from conceiving international cooperation as part of a comprehensive transnational prosecution, which therefore entails an overall protection of the defendants and all individuals involved.53 In order not to abandon the requirements of the mutual recognition system, this way of realising a division of labour—far from granting individuals a level protection of their rights similar to that they enjoy in national cases54—is still conceived as a means for offloading onto the cooperating authorities the burden of ensuring respect for individual rights within their own sphere of competence.55
These conclusions also apply to the methods of conducting the investigation and taking evidence in another member state. In this regard, the EIO Directive, by reproducing the typical combined mode of obtaining evidence, demonstrates the need for a multicultural approach in the application of criminal procedural law in the field of transnational inquiries. What EU legislation still lacks, however, is a virtuous interaction between the national systems of human rights protection involved in the transnational procedure—a deficiency that the order model has surely inherited from the last phase of the MLA system. As we will see, the solution of combining lex loci and lex fori upon the condition of consistency with the fundamental principles of the executing country cannot ensure a harmonised complementation of the two procedural laws, since it can seriously alter the balances of interests pursued by the domestic laws. This applies firstly to lex loci due to the obligation of the executing authority to comply with foreign requirements that might even be “unfamiliar”56 with its own law. Nor does this solution, which is clearly aimed at fulfilling the needs of lex fori to facilitate the admissibility at trial of evidence in the relevant proceedings,57 ensure a proper application of lex fori. Despite the fact that suspected or accused persons (as well as their lawyers on their behalf) are entitled to request the execution of an investigation order (moreover within the limits and where provided for by national procedural law) [art. 1(3)] and despite the explicit reference to the need to respect the right to defence among the states’ obligations that the new instrument cannot modify [art. 1(4)], there is still no trace of any possibility for private parties to take part in investigative activities in a manner remotely comparable to participation allowed to (prosecution) authorities of the executing country. Thus, departing from the approach of the old MLA instruments, the Directive has failed to provide for any form of participation of private parties of the relevant proceedings in the execution of the requested measure—a lacuna that does not only impinge on defence rights but also shows the underestimation of the defence’s contribution to securing the correct application of its own law.
3.2 The Cooperation Model of Joint Inquiries
There is little doubt that a clear acknowledgement of the new mode of transnational evidence gathering has derived from the enactment of legal regulations for setting up joint investigation teams and obtaining evidence by means of them. It has been observed that this model has not developed in the context of the order model, surprising as it might be that the free movement of judgements and judicial products has not led to establishing a free flow of law enforcement officials from one member state to another.58 As we have seen, joint inquiries clearly developed from the model of extraterritorial inquiries,59 and it is noteworthy that the first international instrument that provided a general legal framework for joint investigation teams in Europe was the EUCMACM, which, moreover, marked a significant cultural change in the way extraterritorial investigations can be carried out. As a consequence of this approach, albeit still based on the request model rather than on the order model,60 the authorities of more than one member state could ordinarily carry out joint investigative activities clearly affecting fundamental rights.61
Concerning the modes of taking evidence, all the international and supranational legislation that has regulated the conduction of joint investigations over the last two decades,62 while reproducing the approach of the EUCMACM, has returned to a rather strict application of the (procedural) law of the State in whose territory the team operates.63 This has marked a highly territorial conception of procedural law—a conception only mitigated in the first instruments that governed the conduction of joint investigations, such as the EUCMACM and the FD JIT, by providing for the possibility that members of the team other than its leader can, when carrying out their tasks, take into account the conditions set by their own authorities in the agreement on setting up the team.64
This approach, which entrusts the establishment of investigative methods to case-by-case agreements, entails many risks both for the efficiency of cross-border prosecution and for the rights of the individuals involved in transnational inquiries. Thus, provisions such as those of the EUCMACM and the FD JIT manifestly leave great uncertainty as to the procedures that must be followed and the limits to the investigative powers, since they neither allow for the addressees of the investigative activities to know exactly what conditions may be required nor clarify how these can be made compatible with lex loci.
To avoid these shortcomings, a second generation of international instruments, while decoupling the joint inquiries from the mode of legal assistance, has tightened the application of lex loci, thus requiring the application of the same standards of obtaining evidence to domestic procedures.65 At a national level, some domestic legislation has adopted a similar solution,66 while other regulations have posed legal limits on the power to agree conditions on evidence gathering in the context of joint investigations, in the sense that the national law of the member of the team in a secondary position provides a limit to the tasks that can be required of them.67 Nevertheless, the application of lex loci as basis for any activity conducted by the team can give rise to a plethora of evidential laws in all cases in which the team operates in the territory of more than one Member State.68 This solution constitutes neither an efficient nor a proper solution in a common area of freedom, security and justice, since it not only multiplies the risk of incompatibility of the evidence collected with lex fori and therefore the risk of its inadmissibility in one or more national procedures,69 but it can also expose individuals to similar investigative powers interfering with their rights in a possibly different manner according to the State in whose territory the team operates, thus undermining the individuals’ trust in legal certainty.
In sum, both these approaches (free agreements on the forms of taking evidence and the application of the sole lex loci) give rise to serious concerns from a human rights perspective. Not only does the mode of joint inquiries not satisfy the need for legal certainty as to the evidentiary procedure, but it likewise returns to an even more territorial conception of transnational procedures than that of both the request and the order models, even where the investigations require a coordinated action spread over the territory of many member states—a solution that does not take into due account the trust both of the defendant and the addressee of the investigation in criminal procedural law. And one might argue that this approach has defeated one of the main challenges of joint inquiries, i.e., the creation of an integrated procedure that, by achieving a new balance among competing values, can properly fulfil the (individual rights) needs of the legal (constitutional) systems of the cooperating authorities.
3.3 The Federalist Approach
Another model provides an alternative to both of the request and order systems. This model shows a highly original approach, which, starting with the assignment of the prosecutorial competence, also entails, moreover, the power of the competent authority of a single State to investigate directly abroad pursuant to the sole lex fori.
Historically, this approach has developed in some federalist contexts, providing an interesting way of obtaining evidence in other provincial states. In Europe, Switzerland adopted this model up to the new StPO of the Helvetic Confederation,70 thus overcoming the multitude of cantonal procedural legal systems by allowing the competent authority to carry out direct investigations over the whole Helvetic territory under its own law. This approach constituted the core idea of the 2006 project on the transnational procedural unity led by Bernd Schünemann —a project that, even after the entry into force of the Lisbon, has not lost its relevance, providing a useful alternative to the model of mutual recognition on the basis of the assumption that European transnational inquiries require a single, coherent set of procedural rules that cannot be ensured through the combined application of two or more (possibly different) procedural laws.71 Also here, the proposed model is based on the concentration both of prosecutorial and investigative powers in one single member state. This result would be achieved though a prompt assignment of jurisdiction, which in cases of multiple competences of more than one State should follow a two-step approach consisting of the combination of a fixed, hierarchised order of criteria with a flexible procedural solution based upon the focal point of the alleged offence. One of the most significant innovations of this model consists of the introduction of a new institution, i.e., Eurodefensor, whose tasks would include representing the defendant’s rights in the assignment of jurisdiction. This is a very delicate phase, since the assignment of jurisdiction would imply the attribution to the competent authority of the power to investigate throughout the EU. Moreover, the fact that investigations and the collection of evidence follow the sentencing state’s law would also make the admissibility of evidence a strictly national issue.72
Certainly, the main merit of such a federalist model lies in the coherence sought not only by the assignment of the prosecutorial and investigative power to a single state but also by the application of a single procedural law to transnational investigations. These characteristics mark, however, the limits of this approach. Thus, it can be doubted that the choice to link prosecution, adjudication and investigation to a single authority and a single (both substantive and procedural) law can ensure coherence to any cross-border investigation, while properly satisfying the need for pluralism that is inherent in the most complex transnational inquiries. Especially in the most complex criminal actions, characterised by a multitude of single crimes committed by several people with different citizenships (and often resident in different countries), concentrating the prosecution in single jurisdictions for single offences, as we will see, seems to satisfy neither the need for procedural economy nor the defendant’s interest in avoiding multiple prosecution.73 In addition to the difficulty of establishing the competent jurisdiction in relation to acts spread over the territory of several states, the solution of assigning the prosecutorial power to a single territorial jurisdiction can hinder the efficient prosecution of the entire criminal phenomenon.